October 2018 Term in review — Part IV (Interruptions, continued)

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In this post, we continue to examine the role of interruption at oral argument in the 2018 Term. In our last post, we showed that the overall rate of justice-to-justice interruptions went down in the 2018 Term, as did the gender imbalance of those interruptions. In this post, we scrutinize who is interrupting and who is being interrupted at the individual level. The data suggests that, in 2018 at least, gender is not the only factor seemingly at play: seniority also seems to be an important factor in this Term’s judicial interactions.

Interrupting versus being interrupted: who is disproportionate?

The figure below looks at justice-to-justice interruptions. It shows the relationship between the rate of being interrupted and the rate of interrupting for each justice in the 2018 Term. We published a similar figure for the 1998-2016 and 2017 Terms in a previous post. This is a good way to assess whether someone is being interrupted because they simply talk a lot: if that were true for an individual justice, high rates of being interrupted would correlate with high levels of interrupting. The dashed 45° line represents parity between being interrupted as often as one interrupts. Thus, even though the data is presented in terms of raw number of interruptions, the 45° line effectively accounts for variation in the rate of each individual justice’s speech episodes. For instance, Justice Thomas sits at the zero point on both axes, since he rarely speaks. Justices who are interrupted more than they interrupt sit above and to the left of the 45° line (represented by solid red circles), justices who interrupt more than they are interrupted sit below the 45° line (represented by hollow black circles).

Consistent with the finding that female justices are interrupted at significantly higher rates than male justices, once again in the 2018 Term, Justices Sotomayor and Kagan were the two justices most frequently interrupted by other justices. The figure shows the raw number of interruptions for each axis: Sotomayor and Kagan were each interrupted approximately 49% and 35% more often than the most interrupted male justice, Justice Alito.

However, there is an obvious difference between Sotomayor and Kagan. Sotomayor was once again the most interrupted justice in the 2018 Term, and she was interrupted by her fellow justices many more times than she interrupted them. In contrast, Kagan interrupted her fellow justices even more than she was interrupted. In previous years, this was not the case. Previously, we found that Kagan was learning to reduce her polite language—which seems often to simply make her easier to interrupt—but she had lagged behind Sotomayor and other female justices in making this adaptation. Kagan may be learning to more effectively stand up for herself at oral argument.

The other striking result from the first figure is that, unusually, there are two male justices who sit on the upper left side of the 45° line. Both Justices Kavanaugh and Gorsuch were interrupted more than they interrupted, which is atypical. Since these are the two most junior justices, and Kagan and Sotomayor are the next two most junior justices, it seems likely that there is a seniority effect in justice-to-justice interruptions at play in the 2018 Term. In prior research, one of us found that seniority was a statistically significant factor in interruption rates—more senior justices interrupt more junior justices at significantly higher rates than vice versa—however the effect in substance was overwhelmed by the impact of gender (as it also was by ideology).

Although we have not yet conducted regression analysis for the new Term, the figure suggests that seniority may have been more significant this Term. But this does not mean gender is no longer significant. We note that Kavanaugh and Gorsuch were interrupted only slightly more than half as many times as Sotomayor and Kagan. Gender still seems to be heavily at play in terms of who is interrupted, even though Kagan is breaking the pattern somewhat in terms of who does the interrupting. (We do not want to make too much of Justice Ginsburg’s lower rates of both interrupting and being interrupted, due to her absence from some arguments. Previously, she was lower on both fronts.)

Advocate interruptions of justices: improvement?

We see more or less the same pattern when we examine how often the justices were interrupted by the advocates. The figure below shows how often each justice was interrupted by one of the advocates, per thousand words spoken by the justice. In contrast to previous findings, there is no self-evident gender effect here. Seniority seems to be at play as much as gender.

When looking at which advocates do the interrupting, we also see less of gender effect than was found in previous Terms. The figure below indicates which advocates interrupted the justices the most, normalized per thousand words.

Of significant interest, the number one interrupter on this measure was a woman, Barbara Underwood. Underwood appeared in a particularly contentious, and potentially significant, case, Department of Commerce v. New York, on the question of whether federal government may include a citizenship question in the 2020 Census. Having a woman in the number one spot is not the only shift: there does not appear to be the previous gender pattern at all in the other advocates’ interruptions of the justices in the 2018 Term, as the two genders are distributed quite evenly. We think that the fact that women can now interrupt as much as men is a great step forward, although technically advocates should never interrupt the justices, according to the Supreme Court rules. This advance is particularly important given our recent finding that female advocates were given less of an opportunity to speak in 2018 oral argument than male advocates.

Technical notes:

Note that some advocates do not appear in the third figure, as the transcript indicates that they did not interrupt at all during their appearance/s.

When we talk about interruptions in this post, we include any time one speaker interrupts another speaker as indicated in the transcript by the “–” notation at the end of the line. Previously, we have differentiated between quickly occurring interruptions, which may be accidental (called “crossovers” to capture two people beginning to speak at almost the same time), and more distinct interruptions, occurring when a speaker clearly has the floor, capturing more explicitly impolite or deliberate interruptions. We do not yet have the timestamps for this Term to make this distinction. Consequently, there may well be instances where the transcript reflects an interruption which some of our readers may feel was not “really” an interruption. That may be so, however, readers should also consider that perceptions of whether one speaker has interrupted another are affected by the biases and expectations of the listener and we trust the court reporters to at least be consistent. We have used the same definition of interruption in all of the data in this post.

October 2018 Term in review — Part III (Interruptions)

A more civil Term?

As we have now well documented, there has long been a gender imbalance in the rate of interruptions of female justices versus male justices. Previously, we asked whether that imbalance had improved in response to the attention being given to the Virginia Law Review article that revealed this pattern, as both Justice Sotomayor and Justice Ginsburg had each suggested it had. As of OT2017, we found that it had not. But an analysis of justice to justice interruptions from the 2018 Term suggests there has been improvement at the Court.

Female Justices are still disproportionately interrupted, but less so

The next two figures are based on our calculation of the normalized rate of interruption for the male and female justices, per argument. Given that Justice Thomas is virtually silent at oral argument and in light of the fact that a number of arguments in the 2018 Term took place before an eight-person bench, it is important to normalize the rate of interruption by the gender ratio of the participating justices in each case. For example, where Justice Ginsburg was absent and Justice Thomas was silent, we treated the Court as comprised of two women and five men. We went back and applied the same methodology to the oral arguments transcripts for previous terms, going back to 1998.

The figure immediately below shows the difference in the normalized rate of interruption for the female justices compared to male justices (orange bars). All bars that appear above the zero line mean that women are interrupted more than men; bars below the line show the reverse. Adjusting for their relative numbers on the Bench, the female justices were interrupted at a higher rate than the male justices in every Term except for 2004 and 2005. What is more, that difference was growing on average from 2006 to 2017. But the 2018 Term shows an improvement.

The 2018 Term was not only less gender imbalanced than the extraordinary 2017 Term, the gender difference was also somewhat lower than in every Term since 2011. Perhaps the change that Justice Sotomayor perceived, of an improved and more civil environment at oral argument, is now manifesting more clearly?

A recent improvement, or a broader trend?

However, the difference in the normalized rate of interruption may be less informative than the same information looked at as a ratio of interruptions between men and women. The figure below shows the ratio of interruptions of female versus male justices (blue bars): a Term measuring at 1 would have an equal number of interruptions of female justices and male justices, normalized by their respective numbers on the Court.

Looked at in this way, not only is the 2018 Term a vast improvement on recent years, it has a lower gender imbalance than any Term since 2004, back when Justice Ginsburg was the sole woman on the Court. It also suggests that perhaps our pessimism last year was unwarranted: this shows that in terms of the ratio of interruptions, female to male interruptions also dropped significantly in 2017, after the issue became one of public comment.

A more civil Court?

Although the difference in the normalized rate of interruption between female and male justices (orange) went up in the 2017 Term and down in the 2018 Term, the ratio of those same numbers (blue) went down in each of those terms. What explains this difference between the orange bars and the blue bars? The answer is that the number of justice to justice interruptions is not constant, not by any means, as the next figure shows.

The 2018 Term was not only a less gender imbalanced term in terms of interruptions, it was also seemingly more civil (or at least less heated) than the 2017 Term. The rate of interruptions in 2017 was exceptionally high, and 2018 saw interruptions drop somewhat. We do not want to overstate the civility that represents: 2018 still saw the third highest level of interruptions in the last 20 years, but the increase over previous years is more in line with a general linear trend, rather than the exponential shift that could have been inferred from last Term’s interruption levels.

We also have to be wary of reading too much into the lower rate of justice to justice interruptions in the 2018 Term. The decrease in interruptions might simply be attributable to the large number of cases where at least one justice was absent—Justice Ginsburg through illness and Justice Kavanaugh by joining the Court partly through the Term. In the next post we will break down interruptions by justice.

One final point to note: remember that the 2004 and 2005 Terms were the only two terms in which men were interrupted more, proportionally, than women. We see from the above figure that those two Terms were also outliers in terms of the number of interruptions. This suggests that even with just one relatively senior woman on the Court, the unusual lack of gender imbalance in those two Terms was seemingly a result of more men being interrupted, rather than women being interrupted less.

Technical note:

When we talk about interruptions in this post, we include any time one speaker interrupts another speaker as indicated in the transcript by the “–” notation at the end of the line. Previously, we have differentiated between quickly occurring interruptions, which may be accidental (called “crossovers” to capture two people beginning to speak at almost the same time), and more distinct interruptions, occurring when a speaker clearly has the floor, capturing more explicitly impolite or deliberate interruptions. We do not yet have the timestamps for this Term to make this distinction. Consequently, there may well be instances where the transcript reflects an interruption which some of our readers may feel was not “really” an interruption. That may be so, however, readers should also consider that perceptions of whether one speaker has interrupted another are affected by the biases and expectations of the listener and we trust the court reporters to at least be consistent. We have used the same definition of interruption in all of the data in this post.

Interruptions among the justices as a predictor of voting disagreement

In a just published article in the Boston College Law Review, Kyle Rozema and I show that interruptions between two justices at oral argument are significantly associated with voting disagreement between pair in the eventual case outcome. We show that on average, a given judicial pair is 7% less likely to vote together in a case where an interruption occurs between them at oral argument. This adds to the mounting evidence that interruptions constitute good predictors of voting outcomes in cases.

Not all justices are alike, but the pattern is clear

Kyle and I show that interruptions at oral argument, as in the many other areas where interruptions have been studied, capture a form of conflict between the justices. Whether interruptions cause ill will or reflect existing conflict, either way they provide a glimpse into otherwise hidden forms of disagreement between members of the Court. Of course, scholars have long recognized regular dividing lines among the justices, most notably ideological divisions, but those factors apply across all cases—we are able to show that interruptions in a given argument reflect an increased probability of disagreement in the case at hand, even accounting for more general ideological division.

The correlation between interruption and disagreement is not the same for all justices. In general a justice is more likely to disagree with someone who has interrupted them or whom they interrupted, but there is variation. The figure below shows the extent to which each justice is more likely to vote contrary to someone with whom they were involved in interruption in a given case. Points to the left of the zero line in the center indicate a greater tendency to agree, points to the right of the zero line indicate a greater tendency to disagree. All but four justices serving on the Court between 1960 and 2015 lie to the right of the zero line, being more likely to disagree with someone with whom they interrupt or are interrupted by.

Differences in Disagreement for Cases with and without Interruptions (Jacobi & Rozema 2018)

Interruptions as conflict, and other theories

We show that a substantially and significantly significant relationship exists between justice to justice interruptions and ultimate disagreement between those justices in the case at hand: a greater probability of voting disagreement between justices of 7% based on one interruption is a very large effect. The question, then, is what is the mechanism of that disagreement?

We explore several explanations for why justices who interrupt each other in a case are less likely to vote together. Our hypothesis is a “conflict” theory: interruptions constitute a type of observable conflict that is systematically associated with disagreement. The conflict theory is consistent with psychology research, which defines interruptions as “deviations from the turn-taking rule that specifies that only one party should talk at the time.

But we also explore other theories. A second “exposure” theory would suggest that justices who speak more in a case might be more exposed to interrupting or being interrupted simply by virtue of taking up more airtime. A third “dissatisfaction” theory is that a justice is interrupting because he or she is at odds with the rest of the Court about the direction of the oral argument and the anticipated outcome of the case. For example, this may occur if the case is very salient to the individual justice but not necessarily salient to the rest of the Court. A fourth “difficult case” theory would suggest that interruptions are simply reflections of something about the case generally that is common to all justices, and cases with more disagreement are more prone to interruptions. In difficult cases, an interruption may not be specific to either of the justices involved in the interruption but is simply a response to the nature of the case itself

We find that the conflict explanation accounts for over half of the effect: the probability of two justices agreeing when one has interrupted the other in a case is reduced by over 4%, even after we have accounted for the other explanations. Exposure is the next most significant factor: a 10% increase in the time a pair of justices spend speaking decreases the likelihood of their agreement by 5.3%. We find no evidence for the dissatisfaction theory. We also find evidence for the difficult case theory: agreement between the justice-pairs is 1.3% lower when there is this kind of interruption. The effect of exposure and difficult cases, however, is less than the effect of conflict.

 

 

Using interruptions to predict Supreme Court cases

Reading Justice Gorsuch

If you wanted to know which way Justice Gorsuch was going to vote in the 2017 Term, you could have placed your bets with 86% accuracy by observing just one statistic from oral argument—how many times Gorsuch interrupted each side.

In the 2017 Term, Gorsuch heard 60 arguments and voted 40 times for the Petitioner and 19 times for the Respondent (Washington v. United States was affirmed by an equally divided Court, and by convention no individual justice votes are recorded). On average, he initiated 1.6 more interruptions during the Respondent’s time than during the Petitioner’s (a few of these interruptions were of other justices but most were of the advocate). But like Chicago’s annual average temperature of 49°, that number masks all the interesting variation. In those cases where Gorsuch voted for the Petitioner, he interrupted the Respondent an average 3.8 more times than the Petitioner. Conversely, when voting for the Respondent, he interrupted the Petitioner 3.1 more times on average.

One way to visualize this kind of data is with a histogram.

Gorsuch Interruption Gap, Pro-Petitioner and Pro-Respondent Histograms 2017 Term

In the figure above, we have overlaid two different histograms of the interruption gap (interruptions of Petitioner minus those Respondent) for Gorsuch in the 2017 Term. The orange bars indicate the interruption gap in cases where the Justice voted for the Petitioner: it is clear that in the vast majority of these cases, Gorsuch interrupted less during the Petitioner’s time than Respondent’s. The blue bars show the interruption gap for the pro-Respondent cases. Here, in contrast, most of the weight of the figure is above zero—i.e. Gorsuch interrupted the Petitioner more often, though the shape of the blue distribution is flatter. We should note that because Gorsuch voted for the Petitioner twice as often as he voted for the Respondent (as the Court in general does), an orange bar represents twice as many cases as would a blue bar of the same height.

In the next figure, we further explore the distribution of Gorsuch’s interruption voting patterns through a boxplot.

Gorsuch Interruption Gap Boxplots 2017 Term

Boxplots are cool (trust us!) but they require a little explaining. The “box” part of a boxplot indicates the range separating the top 25% of the data from the bottom 25% (the interquartile range); think of this as the space between the 25 and 75 yard lines on a football field. The vertical line segmenting this box is the median of the data. So, in the figure above, a quick comparison of the light blue pro-Respondent box with the orange pro-Petitioner box shows that there is no overlap between the middle 50% of each of these categories. What is more, the orange box is entirely to the left of zero on the interruption gap scale and the blue box is entirely to the right. The white space between the boxes tells you at a glance that 75% of cases in the orange category have a lower interruption gap than 75% of cases in the blue category. And thus, when Gorsuch interrupts one side more than the other, he is usually showing his hand and telegraphing which way he will vote.

The whiskers extending away from the boxes extend close to the extremes of the data: they indicate about how far the data extends before you get to true outliers (in a normal distribution, 0.7% of observations lie beyond the upper and lower limits). The fact that the whiskers cross the zero point confirms that although the interruption gap is a very strong predictor for Gorsuch, it is not infallible. In fact, in the 2017 Term, relying on the interruption gap to predict Gorsuch’s votes would have been misleading in just 7 cases.

Some broader implications

The Supreme Court is under close scrutiny like never before. In this era of intense political polarization, the Court merits attention for reasons that go beyond the outcomes of individual cases or issues of methodology and jurisprudence. The justices themselves have become icons—or demons—representing the moral future of the country. Ruth Bader Ginsburg’s visage appears on cups, T-shirts, and various other paraphernalia, and the late Antonin Scalia is fetishized equally by the right. The two most recently appointed associate justices were subject to extraordinary confirmation processes. Gorsuch holds a “stolen” seat in the eyes of some, and Kavanaugh is defective in character and temperament, according to others. In a divided country where justices are feted and demonized with equal fervor, the public is now paying close attention to every aspect of the Court’s decision-making process, down to the meanings attributed to every word uttered. Oral argument deserves attention because it is the one public part of the Court’s process, and because it is public it gives us an opportunity to more rigorously assess aspects of judicial character that would otherwise be matters of supposition. One way to explore those more amorphous judicial traits is to look at the language justices use in the relatively unguarded arena of oral argument, as compared to tightly scripted case opinions.

Websites such as SCOTUSBlog provide excellent coverage of current Supreme Court cases using traditional modes of legal analysis: close reading and expert opinion. In addition, reporters such as Marcia Coyle, Dahlia Lithwick, Adam Liptak, and Nina Totenberg provide qualitative analysis of Supreme Court oral arguments, and there also are podcasts such as Amicus, First Mondays, and even an army of teenagers who write about the Supreme Court at the website High School Scotus. There is also excellent analysis by other empirically minded scholars, such as Tim Johnson, who has shown that oral argument can be important in judicial decision-making, and some have used transcript data in their research.

But ScotusOA offers something new. Unlike other commentators, we make voting predictions for each justice as the cases are heard. Predicting outcomes is always treacherous, as even a largely accurate model will have variation and noise: even an attempt to model prior data, where the results are known, will lead to imperfect “predictions.” Consequently, we buttress our empirical analysis by listening to the oral arguments, in order to follow the nuances of each case and to understand what the justices think they are communicating.

We also base our predictions on justice-specific models of features of oral argument that our early research has told us are important in the aggregate (Jacobi & Schweers, “Justice, Interrupted”; Jacobi & Rozema, “Judicial Conflict and Voting Agreement”; Jacobi & Sag, “Justices as Advocates”). The challenge is to develop a model that is a good predictive tool in individual cases. To do that, we have developed multiple models for each justice to predict their votes based on oral argument. What is striking about Justice Gorsuch is that he is most easily predicted using just one variable, the interruption gap.

Advocate Interruptions and the Effect of Experience

Advocate interruptions in theory and reality

“Never interrupt a Justice who is addressing you . . . If you are speaking and a Justice interrupts you, cease talking immediately and listen.”

So mandates the Supreme Court’s guide to counsel appearing before the Supreme Court. And yet, in examining all transcripts of oral argument before the Court during the 20 years from Terms 1998 to 2017, there were 48,461 interruptions of the justices by the advocates.

We analyzed 1437 transcripts of oral argument and found that in any given case, on average each advocate interrupted a justice over 13 times.

Our method of analysis requires some unpacking. First, we should be clear about what we mean by an interruption. Oral argument is a conversation between the justices and advocates; Supreme Court guidance notwithstanding, some degree of interruption is a natural part of any conversation. Following the methodology used by Jacobi and Rozema in their study of the impact of justice-to-justice interruptions on case outcomes, we draw a distinction between true interruptions and mere crosstalk, i.e., the brief overlaps in dialog when two people go to speak at the same time and one instantly yields. Specifically our definition of an interruption excludes any speech event where either the interrupter or the interruptee spoke for less than one second. Using this threshold, Jacobi and Rozema found that “substantive” interruptions (unlike brief conversational overlaps) were a good predictor of eventual disagreement between the justice pair involved, even controlling for ideology.

Second, we should be clear on what we mean by an advocate in any given case. The 1437 cases we analyzed featured 1595 different advocates and 3690 advocate appearances. Even though the majority of advocates were single-shot players, i.e., they appeared only once in that 20 year period (1259 of 1595), the majority of appearances were made by advocates who appeared more than once (2431 of 3690). When we say “in any given case, on average each advocate interrupted a justice over 13 times” we looking at the average of 3690 advocate appearances without accounting for repeat players.

Differences between advocates

We are also interested in the extent to which the advocates get interrupted by the justices. Of course, being interrupted by the justices is part of the job at oral argument, but some advocates seem to receive greater deference than others, are allowed to speak for longer periods of time, and are peppered with fewer judicial interventions. Our analysis of the last 20 years of Supreme Court oral argument shows that in any given case, each advocate was interrupted by a justice over 15 times on average.

In a working paper, we are examining what determines advocate success; here, we look at whether advocate experience is associated not only with tolerance of breaking the non-interruption rule, but also with greater deference in terms of fewer interruptions by the justices.

We might expect that a single-shot lawyer who nurtures a case all the way from trial to their big day at the Supreme Court will behave differently to the Paul Clements and Michael Dreebens—experienced advocates who have argued dozens of cases before Court. To test the difference between experienced and inexperienced advocates, we calculated the number of times each advocate appeared in our 20 year period.

As we have argued previously, a good way to examine the nature of the interactions between the participants at oral argument is to compare the extent of an individual’s tendency to interrupt and be interrupted. The figure below displays those two patterns for each advocate appearance in our 1437 cases in the last 20 years. The dashed 45° line represents parity for an individual interrupting as often as they are interrupted, whether that was a little or a lot.

The figure is divided into four equal quadrants according to the appearing advocate’s total number of appearances in the 1998-2017 Terms, allowing us to see if the pattern of interruption varies with experience. The scatter plot shows all 3690 advocate appearances rather than reflecting the averages for our 1595 individual advocates. The advocates range in experience from 1 to 89 appearances, with a mean of 16.7 and a median of 5.

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Advocate Interruptions in Four Quadrants

What the figure shows is that the solid red circles consistently significantly outweigh the hollow black circles—that is, advocates are interrupted more than they interrupt the justices, regardless of experience. For all four quadrants of advocate experience, there is considerable clustering to the left, indicating that even advocates who barely interrupt are still interrupted quite frequently. Thus, politeness does not guarantee more of a chance to speak uninterrupted. But that is not surprising: justices are permitted to interrupt. If the advocates followed the rules and never interrupted, we would only observe points above and to the left of the line. Instead, we see significant interrupting behavior by the advocates at all levels of experience.

In terms of advocates receiving deference, the four quartiles all appear to have a similar distribution pattern; but by calculating the means for each quartile, we see that the rate of interruptions by the justices does go down in the third and fourth quartiles. In the first quartile, with an average of 1 appearance, advocates were interrupted on average 16 times and themselves interrupted an average of 14 times. The numbers for the second quartile, with an average of 2 appearances, were similar: 16.5 and 14, respectively. But in the third and fourth quartiles, with an average of 12 and 51 appearances, respectively, the number of interruptions dropped to 14.5 and 14, respectively, and the number of interruptions dropped to 12 and 12.5, respectively. The standard deviations are quite high, so we must be careful making generalizations, but this suggests that experience results in fewer interruptions, in both directions, by and of the justices.

Elite Advocates

Looking just at the most experienced advocates, we see there is considerable variation in behavior. The figure below shows the rate of being interrupted and interrupting for the most experienced advocates—those who have appeared before the Court at least 15 times in the last 20 years. The first figure is ordered by the number of appearances, noted in parentheses; the second figure is ordered by the average number of times the advocate interrupted, again, noted in parentheses.

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Elite Advocates Interruptions by Appearances

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Elite Advocates Interruptions by Interruptions Committed

Interruptions by the justices are coded red and interruptions by the advocates are coded blue. The lack of symmetry for each advocate confirms that the justices interrupt consistently more often than the advocates do, but the correlation between interrupting and being interrupted is clear: low interrupters such as Ann O’Connell are interrupted less, whereas common interrupters such as Edwin Kneedler are interrupted frequently. Which way the causation runs, and whether those patterns can be explained by factors such as case salience, are questions that require further research.

By Matthew Sag, with input from Tonja Jacobi

 

 

The Gender Effect, Writ Small

There are many ways in which women are excluded from the conversation. Women are interrupted more, given fewer opportunities to speak, and, of course, subjected to mansplaining. When women do get to speak, men tend not to listen—as the old joke goes: “That is an interesting point, Ms. Jones, perhaps one of the men here would like to make it.”

The social science literature suggests, however, that women’s exclusion decreases as their power increases. So when my article with Dylan Schweers, “Justice, Interrupted” showed that female Supreme Court justices are interrupted three times as often as the male justices at oral argument, it received considerable attention. So much so that two Supreme Court justices noted its impact: Justice Ginsburg said that the article had got her attention and predicted that it may well affect the behavior of the justices; Justice Sotomayor later confirmed that the study has changed the dynamics of the Court, inspiring some of the male justices to apologize and the Chief to act more as a referee.

It struck me as ironic then, if not entirely surprising, to read a recent blog post by a man, Adam Feldman, that virtually erased my contribution to this area and seemed to appropriate the impact of “Justice, Interrupted” to himself. My article was addressed directly by two Supreme Court justices, yet it apparently rated no more than a “see also” link at the end of list primarily consisting of Feldman’s own writings. For Feldman to claim that the justices were responding to “these works” borders on misattribution.

The same post also underrates the contribution of another woman, Stephanie Mencimer of Mother Jones. Mencimer was in fact the first person to note the gendered pattern of interruptions on the Court, or at least the first to do so in print. She made this observation on the basis of numbers provided in a blog post by Feldman, but Feldman had not recognized the pattern himself. Feldman subsequently claimed that “[t]hese imbalances were identified” by him, but nothing indicates that to be so, at least not until a woman had pointed it out to him. Only more than a year later did Feldman (working with gender politics expert Rebecca Gill) explore the issue in detail, in an unpublished working paper, written at about the same time as my article with Dylan Schweers was under review at the Virginia Law Review, where it was accepted for publication in March of 2017.

Women are encouraged to be less assertive than men—I have written about this well-established effect in the context of criminal procedure. We are certainly expected not to challenge a man who takes credit for our work. But if we can’t even stand up for ourselves in order to get fair recognition for our work on gender dynamics, then what hope is there?

By Tonja Jacobi

 

Justice-to-justice interruptions: gender versus ideology?

The effect of gender versus ideology on Supreme Court interruptions

As discussed in a previous post, the Virgina Law Review article, “Justice, Interrupted” (Tonja Jacobi & Dylan Schweers), showed that female Supreme Court justices are interrupted three times as often as the male justices at oral argument. This conclusion was based on hand coded data from the 1990, 2002 and 2015 Terms and algorithmically coded data from the 2004 to 2015 Terms. Yesterday’s post extended that data to include the 2016 and 2017 Terms and the 1998 through 2003 Terms, spanning a twenty year period.

One question that gets asked a lot about the gendered nature of interruptions at oral argument is whether the effect is a result of “the fact” that women talk more than men. It is true that speaking more is associated with more interruptions at the Court. But the common trope that women in particular talk more has been disproved time and again: women account for approximately one quarter of speaking time in the average conversation.

We could, of course, simply normalize interruptions by words spoken, but there is an endogeneity issue there. Interruptions might stop people from speaking, or the interrupted justice might speak more to respond to an interruption. We come at the issue another way: if it were true that female justices were interrupted more because they talk more, then we should also expect them to be responsible for more interrupting as well. But that is not the case at the Supreme Court.

The figure below looks at justice-to-justice interruptions. It shows the average rate of being interrupted and interrupting for each justice serving during the Roberts Court, covering the 1998-2016 Terms, inclusively. The dashed 45° line represents parity for any given justice: Justice Thomas and Justice Alito both sit on this line, interrupting as often as they are interrupted. In Justice Thomas’s case, he sits at the zero point both axes: not speaking has its advantages. Justice Alito interrupts more and is interrupted more than Justice Thomas but is still below average on both and proportional.

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Justice-to-justice Interruptions 1998-2016 Terms

Notably, all three of the women currently serving on the Court sit above the 45° line. Justice Ginsburg is only marginally above the line, making her slightly more interrupted than interrupting. But Justice Kagan and Justice Sotomayor both sit well above the line, disproportionately more interrupted than interrupting. It is primarily the interruptions of those two justices, then, that are driving the ongoing gender tilt on the Roberts Court. In contrast, Justice O’Connor sat well below the line, making her much more an interrupter than an interruptee.

Is the gender effect that we see on the Court, then, idiosyncratic to the personalities of the justices? Not necessarily. As Jacobi and Schweers showed, ideology was also a strong predictor of interruptions: in the modern era, the conservative justices interrupt liberal justices disproportionately. As shown in a previous post, Justice O’Connor served on the Court during a period of much lower interruptions overall, and at a time that did not show the same gender pattern. Unfortunately, she has been the only conservative female justice throughout the Court’s history. Ideally, we would have a new conservative female justice to test out the extent to which ideology versus gender is driving the pattern, but with the nomination of Judge Brett Kavanagh to the Court, and a Republican controlled Senate, that knowledge remains out of our reach for the foreseeable future.

We can use the same style of figure, plotting the numbers of justice-to-justice interruptions for each justice, to see what if anything changed in the 2017 Term. As seen in the figure below, Justice Kagan, Justice Sotomayor, and Justice Breyer were still significantly more interrupted by their fellow justices than interrupting of their comrades in the 2017 Term. They are now joined in this status by Justice Alito, who moves off the even ratio line, lowering his rate of interrupting relative to his rate of being interrupted. Notably, Justice Ginsburg shifted significantly in the other direction in that same Term, putting her below the even ratio line.

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Justice-to-justice Interruptions 2017 Term

We would not put too much stock in year-to-year variation, but it is useful to take a snapshot of what is going on in oral argument, particularly seeing some variation in Justice Alito and Justice Ginsburg’s behavior. We can also for the first time plot the position of Justice Gorsuch, who is neutral and sits low on both axes, but that may just be the behavior of a new justice.

At first glance it may seem that both gender and ideology are playing less of a role than previously, with one less liberal woman be interrupted more than she interrupts, and one conservative man going in the other direction—but that is misleading. Note that the scale has dramatically increased in the 2017 Term: as we showed in a previous post, justice to justice interruptions are dramatically increasing in recent years. In the 2017 Term, Justice Sotomayor, Justice Kagan, and Justice Breyer were all interrupted so much more than they are interrupting that the gender differential is still considerable. Similarly, in the 2017 Term, conservative justices interrupt at three times the rate of liberal justices, even with Justice Ginsburg and Justice Alito doing their best to even the scales.

By Tonja Jacobi and Matthew Sag

Gendered interruptions at the Court

Gendered interruptions at the Court: Looking forward and backward

In early 2016, I published an empirical study with Dylan Schweers, “Justice, Interrupted” which showed that female Supreme Court justices are interrupted three times as often as the male justices, by both male justices and male advocates at oral argument. Justice Ginsburg said that the article had got her attention and that it may well affect the behavior of the justices; Justice Sotomayor later confirmed that the study has changed the dynamics of the Court, inspiring some of the male justices to apologize and the Chief to act more as a referee.

Justice Ginsburg and Justice Sotomayor’s comments suggest that we should see the gender bias in interruptions dropping off in the 2017 Term. A recent blog post has suggested that female justices were not interrupted any more than male justices last Term. Unfortunately, the numbers do not bear out that conclusion.

The 2017 Term was in fact the second most gender unbalanced in the last 20 years. The figure below shows the ratio of interruptions of female versus male justices: a Term measuring at 1 would have an equal number of interruptions of female justices and male justices, normalized by their respective numbers on the Court.

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JUSTICE-TO-JUSTICE INTERRUPTIONS 2017 TERM, GENDER RATIO (NORMALIZED)

In 2010, for the first time ever, one third of the Court was female. Focusing on justice to justice interruptions, in 8 of the 12 years before 2010, the female justices were interrupted less often than the average male justices. Since then, in every Term, the female justices have been disproportionately interrupted. In the 2016 Term, for the first time that ratio exceeded 2:1, approaching 2.5:1. In the 2017 Term, once again the ratio of female to male interruptions between the justices exceeded 2:1 once we normalized the data to account for the fact that women are only one third of the Court.

Could Justice Sotomayor’s impression of a changed Court—beyond the apologies and potential interpersonal changes occurring behind the scenes—be a product of fewer interruptions overall? Once again, the numbers suggest otherwise. As the figure below shows, the number of interruptions per Term has been more or less steadily increasing in the last 20 years, and certainly 2017 was no exception.

From the late 1990s and early 2000’s, there were an average of between 25 and 50 interruptions each Term; during the Roberts Court, that number has not dropped below 50 per Term—with one exception. In the 2016 Term, with an 8 person Court taking fewer politically charged cases, the justices were perhaps less engaged and thus less disruptive of one another. But now with a full contingent, the justices are interrupting each other more than ever, leaving the previously unattained 100 interruptions threshold well behind, surpassing 125 interruptions.

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JUSTICE-TO-JUSTICE INTERRUPTIONS 1998-2017 TERMS

Another positive effect that Justice Sotomayor suggested had occurred was that the Chief was changing the way that he refereed the Court, making more of an effort to intervene to ensure interrupted justices had a chance to ask their aborted questions. After Adam Liptak of the New York Times wrote an article on my study, he wrote to me noting a series of arguments in which the Chief had said, “Justice X had a question pending,” redirecting the advocate back to an interrupted female justice. It is still early days, but to begin to test whether Chief Justice Roberts’s behavior changed in response to “Justice, Interrupted,” the figure below examines instances in which Chief Justice Roberts acknowledged a Justice by name and referred to a question, excluding instances in which the Chief referred back to a completed question for purposes of probing the advocate further on the topic.

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CHIEF JUSTICE ROBERTS’ INTERVENTIONS 2005-2017 TERMS

It is clear that the Chief, who famously thinks of himself as a referee, has markedly increased his refereeing activities at the Court over time, but that appears to be much more a product of experience than in response to my study. The Chief Justice does more refereeing in the 2016 and 2017 Terms than earlier in his chief justiceship, but the trend appears to start well before the 2016 term. Not every effect can be captured by the data—if the study prompted the men of the Court to apologize to the women, then it had a very significant effect, but it is not one that is apparent to the public eye.

By Tonja Jacobi, with input from Matthew Sag